What does it mean to circumvent a “Technological Protection Measure”?

By Richard Stobbe

Copyright attempts to balance the rights of authors with the rights of users. It’s this tension – copyrights vs. user rights – that makes copyright so fascinating (…to some people).

In 2012, Parliament enacted some changes to Canadian copyright law, which included a number of so-called “user rights” or exceptions to infringement, some of which were conditional on rules dealing with the circumvention of technological protection measures. I’ll give you an example: under section 29.23, recording a TV program for time shifting on your PVR is not an infringement of copyright as long as you did not circumvent a technological protection measure (or “TPM”). So circumvention of a TPM can take you outside the benefit of the exception, with the result that the recording would constitute an infringement.

No court has had a chance to review the rules around TPMs… until the decision in 1395804 Ontario Limited (Blacklock’s Reporter) v Canadian Vintners Association (CVA), 2015 CanLII 65885 (ON SCSM), an Ontario decision which interprets circumvention of a TPM.

A “technological protection measure” is, according to the Copyright Act any “effective technology, device or component” that controls access to a work and whose use is authorized by the copyright owner. It is deliberately broad. The Blacklock’s case dealt with a subscription-based online newsletter published by Blacklock’s. When their CEO was mentioned in a Blacklock’s article, the CVA bypassed the subscriber paywall to access the article. Did the CVA hack into the system and then scrape and republish the Blacklock’s content? No (although such conduct might have justified the $13,000 in copyright infringement damages that were awarded by the judge). The CVA obtained a copy of the article via email, from a colleague who did have a subscription.

According to this case, circumventing a technological protection measure includes obtaining a copy of an article by email, where the article sits behind a paywall. The good news is that no hacking skills are required!

Since this case will not be appealed, it stands as the leading case, although it has been called controversial, bizarre and an extraordinary misreading of copyright law. Since it is the decision of an Ontario small-claims court, it is not binding on other courts in Canada. And since Blacklock’s is pursuing copyright infringement claims against others – there are 10 claims currently filed in the Federal Court – this issue should be canvassed at the Federal Court where further clarification may emerge. Stay tuned.

Calgary – 07:00 MT

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